Anderson v. Tri-State Home Improvement Co.

CuRRiE, J.

(on motion for rehearing). Counsel for defendant, in his brief in support of the motion for rehearing, urges that upon the verdict of the jury it was impossible for defendant’s president, Spector, to have possessed the intent that defendant corporation would not perform the representation as to the guaranty at the time Spector made such representation. Such conclusion is based upon the fact that the jury returned an answer of “No” to the question of the special verdict which inquired as to whether such representation was false, but answered “Yes” to the question of the ver-diet which asked whether Spector should have known such representation was false.

Such brief also contains this admission.: “We grant that Mr. Spector was for all intents and purposes the [defendant] corporation'. His wife and father are officers for corporate purposes.” This being so, there is no question but that Spector knew at the time of making the representation as to the guaranty that it was false, whether it be construed as a promise to be performed in the future or as a representation of existing corporate policy. The evidence as to his-knowledge of its falsity, if the representation be construed as a promise to do something in the future, is reviewed in our former opinion, and it would serve no useful purpose to repeat it here. The foregoing admission as to the corporation being practically the alter ego of Spector establishes that he must have known that the corporation had no existing business pdlicy of making such a guaranty in connection with its sales and' installations of siding. There was, therefore, no credible evidence' to support the jury’s answer of “No” to the question inquiring as to whether Spector knew such representation to be false at the time, he made it. The jury should have answered such question “Yes,” as well as the succeeding question inquiring as to whether Spector should have known such representation to be false, which latter question it did answer “Yes.”

We do not consider that there was an inconsistency in the verdict which requires a new trial on the issue of fraud. This is because the answer of “Yes” to the question, which inquired whether Spector should have known such representation to be false, together with the other answers to questions in the verdict, is sufficient to substantiate a judgment for plaintiffs exclusive of the damage issue.

By the Court. — Motion for rehearing denied without costs.